Abortion Support Network disappointed by the ruling of the European Court of Human Rights on the challenge to Ireland’s abortion ban

Abortion Support Network is extremely disappointed with today’s ruling of the European Court of Human Rights in relation to the challenge to Ireland’s abortion ban by three women who underwent considerable hardship and trauma by being forced to travel to England in order to access a safe and legal abortion. As an organisation that provides support to women who are forced to make this journey, we know the significant distress, worry and financial burden that women in Ireland are made to bear by being denied an abortion in their own country.

Every year thousands of women are forced to make this journey, and do so under extremely difficult, often desperate, circumstances. They face the struggles of finding the money to pay for the cost of the trip and procedure, of taking time off work, and sometimes the additional costs and difficulties of finding child care. These costs can range from anything between £400 and £2000. Women face the additional burden and stress of maintaining secrecy about their abortion back home. As a result, these women are incredibly isolated and many travel alone.

Abortion Support Network’s Director, Mara Clarke said:

“While we are encouraged by the ruling that woman “C”, who was undergoing chemotherapy when she fell pregnant, had her human rights violated, we are deeply saddened that the Court chose not to recognise the hardships faced by the two other claimants in the case.

The sooner the Irish government rectifies this long-standing injustice, the sooner women will be able to make their own decisions about abortion and make choices that are right for them.

Every week we hear from pregnant women living in Ireland who are in a state of crisis, with no other place to turn. As long as women in the Republic of Ireland do not have access to safe and legal abortions in their home country, Abortion Support Network will offer them immediate, practical support in the form of confidential, non-judgemental information, accommodation and financial help towards the costs of their abortion.

We will also continue to offer our support to women in Northern Ireland, and other countries where women’s rights continue to be violated by the denial of access to safe and legal abortions in their home countries.

We will help women irrespective of circumstance as it is our belief that women are capable of making their own decisions.”

In the words of one of the women that we have supported, a 37 year old mother of three:

“It was a very hard decision and I wouldn’t wish anyone to find themselves in this situation … I felt vulnerable, alone and upset. I felt I could contact ASN, that they cared and they were there to support me while in another country and alone … I will forever feel grateful for the help and support I received.”

On Dec 16th inA, B & C v Irelandthe European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

OF THE FEDERATION FOR WOMEN AND FAMILY PLANNING ON THE JUDGMENT A, B AND C v. IRELAND ISSUED BY THE EUROPEAN COURT OF HUMAN RIGHTS IN STRASBURG

The Federation for Women and Family Planning is satisfied with the fact that the European Court of Human Rights in Strasburg has issued the judgment in the case A, B and C v. Ireland consistent with the Court’s judgment in the case Tysiąc v. Poland.

In the judgment issued on 16th of December the Court held that in case of the third applicant (the Irish citizen suffering from cancer who decided to have an abortion in UK because she feared that a pregnancy would negatively affect her health) there had been a violation of Article 8 of the European Convention of Human Rights concerning the right to private and family life. The violation occurred because Ireland did not provide the appropriate medical procedures which would guarantee to obtain a honest diagnosis of the patient’s condition as well as the knowledge about a threat posing to her life because of a pregnancy.

It is worth noting that the Court clearly stated that the doctors cannot deny a woman the access to patient information, appropriate examinations and diagnostic procedures that may provide her with decision-making power about the future of her pregnancy.

The Irish anti-abortion law is very strict. However the Court emphasized in it’s verdict that correcting the national law in that field or judging whether this law is right in isolation from a specific actual state is not it’s task. But in the cases like A, B and C v. Ireland the Court considers to what extent the country’s legally binding law influences the applicants’ lives in the specific situations.

The case of the C applicant is very similar to the case of Alicja Tysiąc. Consequently, we have to acknowledge distinctly that the judgment in the case Tysiąc v. Poland was not an incidental event.

Today’s verdict against Ireland proves that the Court has taken a permanent stand on the similar cases and contrary to the accusations bringing up in the case of Alicja Tysiąc it was not politically-driven.

The European Court of Human Rights aside from judging in the cases of presumptive violation of the Convention, it also sets the certain interpretive standards concerning the human rights. The judgment in the case A, B and C v. Ireland confirms the interpretive standard for Article 8 about the right to private and family life, also in the context of the reproductive rights. The Court in it’s verdict emphasized that a phrase “private life” used in the Article 8 of Convention is a very wide term including autonomy, physical and mental integrity and right to personal development. It is inseparably connected with such aspects like sexuality and reproduction.

Wanda Nowicka

The President

Federation for Women and Family Planning

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